Australia: Competition & Consumer Law News – 23 January 2018

Last Updated: 25 January 2018
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, August 2018

In the media

Former Australian Bight Abalone CEO convicted over false and misleading information
Mr Andrew Ferguson, the former Chief Executive Officer of abalone farmer, Australian Bight Abalone (ABA), was found guilty on 17 counts related to providing false or misleading information to the ABA Board of Directors and prospective investors following a jury trial in the District Court of South Australia (19 January 2018). More...

Allianz, Suncorp to repay more than $60m over unnecessary car insurance
Insurance giants Allianz and Suncorp will refund a combined $65.2 million to more than 100,000 customers who were sold valueless add-on insurance through car dealerships (16 January 2018). More...

Makers of Nurofen ran 'misleading and deceptive' campaign against Panadol: court
Nurofen is better than paracetamol for common headaches, declared the advertisements in women's lifestyle magazines. The Federal Court has found that claim to be misleading and deceptive, after two pharmaceutical giants went head-to-head in a two-year legal battle (14 January 2018). More...

Thousands claim compensation for misleading Nurofen products
Thousands of compensation claims have been lodged over Nurofen products that were purported to tackle specific types of pain but which all contained the same active ingredient (11 January 2018). More...

39 per cent increase in consumer guarantee reports in 2017
More than 29,000 people reported consumer guarantee issues to the ACCC in 2017, with half noting problems getting remedies for faulty automotive, whitegoods or electronics products. Issues with faulty products and businesses being misleading about consumer rights are some of the most common reasons for people to contact the ACCC (08 January 2018). More...

ACCC's priorities for 2018: cartels
In an interview with the Australian Financial Review (AFR), ACCC Chairman Rod Sims has indicated that "2018 will be a very big turning point for cartel enforcement and cartel deterrence". In particular, Mr Sims indicated that there are likely to be three to four domestic-based criminal cartel actions in 2018, with the possibility of seeking jail sentences for individual executives. Mr Sims did not identify the companies involved or the sectors in which they operate, but commented that they varied in size (08 January 2018). More... [subscription access]

Decision published in ACCC's detergent cartel case
Justice Wigney handed down his decision on 22 December, finding that the ACCC had not discharged its burden of proving, on the balance of probabilities, that the respondent had entered into the claimed arrangement or understanding. The reasons for judgment have now been released and show that Justice Wigney preferred the economic evidence suggesting the conduct resulted from oligopoly behaviour rather than agreement. More...

Full Federal Court of Australia has upheld the Federal Court Valve case
The Full Federal Court of Australia has upheld the finding of a single judge of the Federal Court that US-based Valve Corporation engaged in misleading or deceptive conduct and made false or misleading representations about the availability of rights under the Australian Consumer Law in Valve's subscriber agreements and refund policies. The Court also dismissed the ACCC's allegation that Cussons had arrived at an understanding with the other laundry detergent manufacturers, which substantially lessened competition in the market for the supply of laundry detergent (22 December 2017). More...

ACCC warns about Digital Sourcing, formerly Luxstyle
The ACCC has issued a Public Warning Notice about the conduct of overseas based online retailer Digital Sourcing ApS (Digital Sourcing), formerly Lux International Sales ApS (Luxstyle). The ACCC has issued this notice because it has reasonable grounds to suspect that the conduct of Digital Sourcing may breach the Australian Consumer Law by misleading consumers and asserting a right to payment for unsolicited goods, and considers that it is in the public interest to inform consumers about this conduct (20 December 2017). More...

Belkin undertakes to honour lifetime warranties
The ACCC has accepted a court-enforceable undertaking from consumer electronics manufacturer Belkin to honour claims under its lifetime warranty policies for the lifetime of the original purchaser. Belkin has acknowledged that its lifetime warranty representations may have breached the Australian Consumer Law, which prohibits misleading or deceptive conduct and false or misleading representations about the effect of a warranty or guarantee (19 December 2017). More...

WA building company amends unfair contracts
Perth based building company, 101 Residential Pty Ltd, has amended its standard home building contract following ACCC concerns that it contained unfair terms and made false or misleading representations. Between October 2014 and August 2017, 101 Residential's building contract contained non-disparagement clauses that allowed it to prohibit customers from publishing any unapproved information about the company, including online reviews (15 December 2017). More...

Optus in court for allegedly misleading 20,000 customers about moving to the NBN
The ACCC has instituted proceedings in the Federal Court against Optus Internet Pty Ltd (Optus), alleging it misled customers about the need to move quickly from its existing HFC network to the National Broadband Network (NBN). The ACCC alleges that between October 2015 and March 2017, Optus made false and misleading representations by writing to its customers to advise it would disconnect their HFC service within a specified time period as the NBN was coming to their area (15 December 2017). More...

Fletcher & Parker (Balwyn) Pty Ltd - Court outcome
A real estate agency in Melbourne's east will pay $880,000 after the Federal Court of Australia found it engaged in misleading or deceptive conduct and making false or misleading representations about property sales (14 December 2017). More...

ACCC releases second interim report as part of Gas Inquiry
The ACCC has released its 'second interim report as part of its inquiry in Australia's wholesale gas supply arrangements. When releasing the report, ACCC Chair, Rod Sims, observed that: Despite increased supply providing important short-term improvements in conditions, the market is still not operating as well as it could. Prices remain higher than they would be in a well-functioning and competitive market'. More... More...

In practice and courts, published reports

Small business collective bargaining guidelines consultation
The Australian Competition and Consumer Commission is seeking feedback on new guidelines for small business collective bargaining. The guidelines are for small businesses, including farmers, to assist their understanding of the authorisation and notification processes for obtaining ACCC approval for collective bargaining and boycotts. Submissions close on 23 February 2018. More...

Cases

GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser (Australia) Pty Limited (No 2) [2018] FCA 1

CONSUMER LAW – whether the manufacturer of Nurofen engaged in conduct which was misleading or deceptive or likely to mislead or deceive or made false representations by conducting a comparative advertising campaign in which it claimed that Nurofen provided faster and more effective relief from the pain caused by common headaches than does Panadol in circumstances where:

  1. Only one clinical trial suggested that it did provide faster and more effective pain relief for common headaches than does Panadol;
  2. Two other studies conducted subsequently did not replicate the results of the one positive clinical trial; and
  3. The authors of three meta-analyses concluded that no authoritative comparison was possible in the present state of scientific knowledge.

Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (No 4) [2017] FCA 1590
TRADE PRACTICES – competition law – restrictive trade practices – cartel conduct – whether Respondent contravened ss 44ZZRK or 45(2) of the Trade Practices Act 1974 (Cth) – where Respondent and two other manufacturers and wholesale suppliers of laundry detergent in Australia transitioned to ultra concentrated laundry detergent and ceased supplying retailers with standard concentrates at about the same time – whether Respondent entered into an arrangement, or arrived at an understanding, with the other suppliers, in relation to the transition that included exclusionary provisions, or provisions that had the purpose, or had or were likely to have, the effect of substantially lessening competition in the market for laundry detergent in Australia – parallel conduct – exclusionary provisions – Jones v Dunkel inferences.
Held: applicant did not discharge its burden of proving on the balance of probabilities that the respondent entered into any such arrangement or arrived at any such understanding.

Director of Consumer Affairs Victoria v Domain Register Pty Ltd [2017] FCA 1603
CONSUMER LAW – misleading or deceptive conduct – knowledge to be imputed to target audience –respondent sent unsolicited notices to businesses offering to register a ".com" domain name equivalent to their existing ".com.au" domain name – notices similar in appearance to an invoice– whether conduct in sending notices constitutes misleading or deceptive conduct in breach of s 18 of the Australian Consumer Law (ACL) – conduct likely to mislead or deceive – whether "unsolicited services" in s 40(3) of the ACL includes services to be provided in the future – no breach of s 40(3) of ACL. Competition and Consumer Act 2010 (Cth); Corporations Act 2001 (Cth); Trade Practices Act 1974 (Cth); Competition and Consumer Regulations 2010 (Cth); Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010; Australian Consumer Law and Fair Trading Act 2012 (Vic).

Mastec Australia Pty Ltd v Trident Plastics (SA) Pty Ltd (No 2) [2017] FCA 1581
CONTRACTS - First Applicant contracted with a company to design and manufacture tools for the production of components of mobile garbage bins – First Respondent, which was related to the company, later manufactured and sold mobile garbage bins making use of the designs for the First Applicant's product – determination of content of contract – whether there was an implied term as to the beneficial ownership of computer aided design drawings – whether there was an implied term as to the confidentiality of the drawings.
EQUITY – duty of confidence – whether duty exists.
CONSUMER LAW – misleading or deceptive conduct – alleged contraventions of ss 18(1) and 29(1)(g) and (h) of the Australian Consumer Law (ACL) – whether First Respondent's promotional material contravened the ACL – whether First Respondent engaged in misleading or deceptive conduct by passing off – accessorial liability of Second Respondent for alleged contraventions.
Australian Consumer Law ss 2(1), 18, 29; Competition and Consumer Act 2010 (Cth) Sch 2; Copyright Act 1968 (Cth) s 35(6); Trade Practices Act 1974 (Cth) ss 52, 53.

Berry v CCL Secure Pty Ltd [2017] FCA 1546
TRADE PRACTICES – deceit – misleading or deceptive conduct – agency agreement between applicants and respondent for supply of polymer product for printing banknotes to Government of Nigeria – where agency agreement gave applicants right to commission for invoice sales of polymer – whether applicants signed letter terminating agency on basis of representations by respondent that, first, a new agency agreement would be executed between the parties on existing terms and or secondly, if applicants signed a second document to develop in partnership a production facility in Nigeria it would be executed by respondent immediately – whether representations made by respondent – whether representations constituted misleading or deceptive conduct and or unconscionable conduct – whether, if applicants did not sign termination letter, respondent would have exercised powers under agreement to unilaterally terminate agency agreement without cause. Australian Consumer Law ss 5, 18, 20; Competition and Consumer Act 2010, (Cth) s 5, Sch 2.

Pokemon Company International, Inc. v Redbubble Ltd [2017] FCA 1541
INTELLECTUAL PROPERTY –infringement of an artistic work – requirement of original artistic work – presumption of ownership – authorisation of infringement - fair dealing – parody or satire – unauthorised reproduction – declaratory relief.
CONSUMER LAW – misleading and deceptive conduct –representation of sponsorship, approval or affiliation – effect of conduct on class of persons – application allowed.
Competition and Consumer Act 2010 (Cth); Copyright Act 1968 (Cth); Copyright Amendment Act 2006 (Cth); Copyright (International Protection) Regulations 1969 (Cth).

Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534
INDUSTRIAL LAW – alleged contraventions of s 340(1) Fair Work Act 2009 – whether there was a workplace right – whether complaint or inquiry about bonuses is a workplace right – whether complaint or inquiry about request to a third party is a workplace right - whether workplace right was exercised or proposed to be exercised – whether applicant was discriminated against - whether exercise of workplace right was a substantive or operative reason for dismissal – where decision maker gave no direct testimony in the proceedings – whether second respondent involved in the contravention.
INDUSTRIAL LAW – alleged contravention of ss 44(1) and 117 Fair Work Act 2009 – refusal to pay statutory entitlements – evidence that entitlements deliberately withheld – whether second respondent involved in contravention.
CONSUMER LAW – alleged contravention of s 31 Australian Consumer Law – whether misleading representations were made during offer of employment –whether alleged representations were reasonable.
CONTRACTS – contract of employment - whether term of good faith and reasonableness was implied in contract – whether contract breached by failing to pay bonuses and commissions – whether contract breached by failing to set budget targets – whether contract breached for failing to provide additional incentive bonus.
CONTRACTS – cross claim – whether payment to applicant was a loan or advance– whether payment was a discretionary bonus.
COMPENSATION – claim for loss of opportunity to work for first respondent – whether employment would have continued - claim for loss of opportunity to work at former employer – claim of non-economic loss for hurt and humiliation - whether post dismissal actions of employer are relevant to compensation.
Competition and Consumer Act 2010 (Cth) Sch 2, Australian Consumer Law ss 4, 31, 224, 236.

Director of Consumer Affairs Victoria v Fletcher & Parker (Balwyn) Pty Ltd [2017] FCA 1521

CONSUMER LAW – admitted contraventions of Australian Consumer Law – misleading or deceptive conduct and false or misleading representations – real estate agents underquoting sale price estimates to potential property buyers – whether the proposed orders are appropriate in the circumstances – pecuniary penalty – declaratory relief – adverse publicity order – compliance program – costs.
Competition and Consumer Act 2010 (Cth); Australian Consumer Law and Fair Trading Act 2012 (Vic); Estate Agents Act 1980 (Vic).

Skinner v Redmond Family Holdings Pty Ltd [2017] NSWCA 329
TRADE PRACTICES – misleading and deceptive conduct – whether failure to disclose creditors' unilateral right to convert debts to equity was misleading and deceptive – whether reasonable expectation on the part of the respondent as prospective investor that convertibility of loans to equity would be disclosed – where failure to disclose occurred before respondent acquired its shareholding in companies – where purported conversion of loans to equity diluted respondent's shareholding significantly.
TRADE PRACTICES – misleading and deceptive conduct – whether non-disclosure of convertibility of loans to equity was causative of respondent's decision to acquire shares in companies.
TRADE PRACTICES – misleading and deceptive conduct – whether primary judge erred in apportioning responsibility for misleading and deceptive conduct equally between appellants.
APPEAL AND NEW TRIAL – application to adduce further evidence – whether substantial injustice to the appellants if unable to rely on further evidence – where evidence was available by reasonable diligence to be adduced at trial – where high degree of probability of a different result at trial.

Royce v Youi Pty Ltd [2018] QCAT 005
INSURANCE – MOTOR VEHICLES – INSURANCE OF MOTOR VEHICLES FOR LOSS OR DAMAGE – where contractual discretion to declare vehicle total loss – where vehicle so declared – where insured indemnified according to insurance policy – where vehicle written off – where vehicle listed on written-off vehicle register – where vehicle not re-registrable for public road use – where vehicle salvage sold at public auction – where insured informed of registration preclusion before auction – where insured bought vehicle salvage at auction – where insured believed removal of vehicle from register achievable for error – where insurer denied error – where vehicle not removed from register – whether vehicle wrongly declared total loss and written off – whether insurer breached insurance policy and duty of utmost good faith to insured.
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – where insured a consumer – where consumer claim both liquidated and un-liquidated – where Australian Consumer Law applies – where contract of insurance excluded from consumer guarantee provisions of Australian Consumer Law – where no consumer guarantee remedy – where indemnity within definition of a service under Australian Consumer Law – where contract of insurance not excluded from misleading and deceptive conduct and/or unconscionable dealing provisions of Australian Consumer Law.
TRADE PRACTICES – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – UNCONSCIONABLE CONDUCT – where misleading and deceptive conduct not alleged by insured – where insured alleged insurance policy voidable or void for unconscionable conduct – whether insurer acted unconscionably.
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether claim for unliquidated damages for breach of common law implied term of due care and skill in provision of services within jurisdiction of the Queensland Civil and Administrative Tribunal.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Ian Robertson
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions